Tag: IRBM

  • IRBM’s Response to CTIM on the Tax Corporate Governance Framework (TCGF) & TCGF Guidelines

    IRBM’s Response to CTIM on the Tax Corporate Governance Framework (TCGF) & TCGF Guidelines

    The new Tax Corporate Governance Framework (“TCGF“), dated April 11, 2022, as well as the Guidelines for the TCG Framework (Guidelines), has been published on the website of the Inland Revenue Board of Malaysia (“IRBM”). The TCG Framework and these Guidelines are intended to be read in conjunction with one another.

    For further information, see the article titled “Tax Corporate Governance Framework Introduced.”

    The Chartered Tax Institute of Malaysia (CTIM) has received responses from the IRBM dated 20 September 2022 to members’ comments and requests for clarification on the Tax Corporate Governance Framework and TCGF Guidelines regard to specific issues.

    Issue No 1 – The Criteria

    Refer to paragraph 4.1 of the TCG Framework Guidelines:-

    IRBM has confirmed that other companies, in addition to those mentioned above, are free to come forward voluntarily to apply for and participate in the Tax Corporate Governance Framework (TCGF) Programme.

    Other interested organisations may contact IRBM via [email protected] to communicate their interest or to obtain further information on the Programme.

    Issue No 2 – Application of Tax Corporate Governance

    Refer to paragraph 4.2 of the TCG Framework Guidelines:-

    CTIM members’ comments and requests for clarification:-

    Will the application form to participate in the TCGF Programme be available on the IRBM’s website?

    It is suggested that the IRBM issues a prescribed form for submission by taxpayers to maintain consistency in the applications submitted.

    Please advise the earliest date a taxpayer can apply to participate in the TCGF Programme.

    Is there any deadline to apply?

    It is stated that an authentication letter is given to taxpayers once the IRBM is satisfied with the internal control after performing the preliminary review and assessment process. What is the timeline for the IRBM to issue this letter, and who will conduct the preliminary review and assessment?

    IRBM’s Response:

    A test run of the TCG is being carried out as a pilot project in Malaysia at the moment.

    As a result, an invitation to participate in the programme will be sent from Inland Revenue to the chosen company, and the application form will be made available to them.

    Other interested companies can get in touch with IRBM via [email protected] to express their interest or to gain further information, and notification will only be given to the qualified organisation.

    The framework says that the proposed time frame, which starts when the IRBM accepts the participant as a participant and ends when the participant status is granted, is eight to twelve months.

    A TCG committee will examine this with TCG officers from the branch office.

    Issue No 3 – TCG Review

    Refer to paragraph 9 of the TCG Framework Guidelines:-

    CTIM members’ comments and requests for clarification:-

    • Please elaborate on the procedures in place to review the TCG. Please also clarify if the TCG will be reviewed by the same IRBM branch which handles the taxpayer’s income tax files.
    • Is there any separate team in the IRBM in charge of the framework? If so, any contact details?
    • Will the review process result in an audit on the taxpayer?
    • Understand that taxpayers who fulfil the requirement and criteria listed by the IRBM will be deemed qualified for the program’s benefits and shall not be subjected to audit and investigation, but for how long (e.g. 3 years, 5 years, etc.) will not be subjected to audit and investigation after the Authentication Letter is issued?
      • Also, please confirm if exclusion from audit and investigation will cover all tax aspects, so long as the framework covers the same taxes, transfer pricing etc.
    • Please confirm that information provided to the IRBM for the purpose of the Programme are strictly confidential and will not be shared with other Government agencies or used against taxpayers to conduct tax audits and investigations.

    IRBM’s Response:

    The TCG review will be conducted by the TCG committee and TCG officers from the branch office, which handles the organisation’s income tax files.

    The IRBM will perform an adequacy review of the organisation’s TCGF and an effectiveness review of the organisation’s tax control framework (TCF).

    Organisations may contact IRBM via [email protected] for any questions regarding TCG Framework and Guidelines.

    The review procedure is primarily for the IRBM to accept the organisation into the programme.

    IRBM will discuss the issues upfront with the organisation if any key tax risk areas are identified during the review.

    Taxpayers that fulfil the requirement will not be subjected to audit and investigation for three (3) assessment years from the date of the award letter. TCGF should be applied comprehensively to collectively enjoy the programme benefit (terms applied).

    The information provided to the IRBM for the purpose of the programme is treated as confidential.

    Issue No 4 – TCG Process

    Refer to paragraph 12 of the TCG Framework Guidelines:-

    An approach to implementing tax governance procedures is described in the following process.

    CTIM members’ comments and requests for clarification:-

    Will thresholds be implemented to determine what constitutes key/material transactions undertaken by the taxpayer (including related party transactions) and thus needs to be specifically addressed in the TCGF in terms of tax risks involved?

    If so, will the threshold be based on absolute value alone as per Paragraph 13.1 of the TCGF Guidelines (or proportion of a certain denominator, e.g. revenue)?

    IRBM’s Response:

    IRBM will not set the thresholds since the organisation may have different needs, sizes and backgrounds. The organisation’s tax control framework shall be able to identify, overcome, control and report tax risks suitable to the organisation’s tax policy/tax strategy and the organisation’s risk appetite.

    CTIM members’ comments and requests for clarification:-

    Can an approved tax agent under S.153 of the ITA 1967 undertake this review assessment?

    If the preparation of the TCGF is outsourced to the tax agent, can another entity within the same group act as a tax agent to perform the review (e.g. internal audit service provider)

    IRBM’s Response:

    Yes. An approved tax agent under S.153 of the ITA 1967 can undertake this review assessment. However, for greater independence, the organisation should appoint different parties to perform the review.

    CTIM members’ comments and requests for clarification:-

    Please clarify the methods that will be used by the IRBM to review and evaluate the TCGF. Given that documentation must be made available upon request by the IRBM, please clarify the notice period provided to taxpayers upon the IRBM’s request.

    IRBM’s Response:

    IRBM will perform an adequacy review on the organisation’s TCGF and an effectiveness review on the organisation’s TCF.

    The following methods can be used to check and evaluate TCGF and TCF:

    1. Reperformance
    2. Tests and inspections
    3. Observation d) Questions

    In general, the organisation is responsible for maintaining sufficient documentation to meet the programme’s requirements. We understand that due to certain reasons, the organisation may require more time to prepare the documents.

    Therefore, ample time will be given to the organisation to submit the documentation.

    Issue No 5 – TCGF Programme Timeframe

    Refer to paragraph 6.4 of the TCG Framework:-

    CTIM members’ comments and requests for clarification:-

    We note that upon the award of the participation status in the TCGF Programme, the status is valid for a period of 3 years and renewal is required.

    Please elaborate if taxpayers must undergo Steps 1 to 5 as mentioned in Paragraph 12 of the TCGF Guidelines.

    IRBM’s Response:

    Yes, taxpayers will be required to undergo Steps 1 to 5, as mentioned in Paragraph 12 of the TCGF Guidelines.

    Issue No 6 – Benefits of the TCGF Programme

    Refer to paragraph 6.5 of the TCG Framework:-

    CTIM members’ comments and requests for clarification:-

    Priority consideration

    • Eligible to be granted priority consideration for compliance participants with no penalty imposed.

    Please elaborate on the benefits available to taxpayers under this category.

    Will taxpayers benefit from reduced penalty rates where there are issues of non-compliance detected?

    If so, please advise the rate of penalty reduction.

    IRBM’s Response:

    The IRBM will assess the reason for non-compliance and see whether sufficient control has been applied at the organisational level for reduced or no penalty consideration.

    The penalty rate will follow the current ruling.

    Issue No 7 – Others

    CTIM members’ comments and requests for clarification:-

    Are there any participation fees charged by the IRBM?

    IRBM’s Response:

    No participation fee is required.

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    14
  • IRBM’s Response to CTIM on e-C 2022 (3)

    IRBM’s Response to CTIM on e-C 2022 (3)

    Regarding Form e-C 2022, CTIM has offered feedback and comments to the Inland Revenue Board of Malaysia (IRBM).

    The Inland Revenue Board of Malaysia issued its response on 29 July 2022 and 2 August 2022, respectively.

    Despite this, on 11 August 2022, CTIM provided IRBM with additional feedback and comments on the form e-C 2022 after IRBM‘s responses were provided.

    The IRBM issued their responses on September 9, 2022, to the following sections of Form e-C 2022 mentioned in the CTIM Additional Feedback and Comments on 11 August 2022.

    Issue No 1: Item A2 and A7 – Disclosure in the Form e-C relating to Foreign Source Income

    1.1 Referred to the “Summary of Statutory Income from sources of business(es) and partnership(s) outside Malaysia received in Malaysia starting from 1 July 2022.“

    Currently, the TAeF allows disclosure of 1 country under 1 business source only.

    How do the taxpayers disclose the information in a situation where the foreign source income (FSI) is from multiple countries in one business source (e.g., Business 1)’?

    IRBM’s response on 2 August 2022:

    Income reporting should be done separately by the country. For e-Filing, the system allows the use of the same business code for each reporting business income from different countries.

    A2 of the e-Form C 2022 (i.e., Summary of statutory income from sources of business(es) and partnership(s) outside Malaysia received in Malaysia effective from 1 July 2022)

    CTIM additional feedback and comments on 11 August 2022:

    Based on IRBM’s response above, CTIM notes that the system allows the same business code for different countries. However, Form e-C only allows disclosure of 1 business source for 1 country.

    IRBM’s response on 9 September 2022:

    Income from similar activities from the same country should be combined and reported in the same row and space. Income segregation for the same business code from the same country does not need to be done for FSI reporting in e-C 2022.

    CTIM additional feedback and comments on 11 August 2022:

    Based on the A2 of the e-Form C 2022 (i.e., Summary of statutory income from sources of business(es) and partnership(s) outside Malaysia received in Malaysia effective from 1 July 2022), the e-Form C 2022 system seems to have not been updated to allow disclosure of foreign business income for more than 1 country under 1 business source.

    As extracted below, it appears that row 2 has been fixed as Business 2, row 3 as Business 3, and so on.

    CTIM would like to seek further clarification from IRBM on whether:-

    • IRBM will update its system to allow taxpayers to select “business identification” manually, or
    • As long as the taxpayers inserted the same business code in different rows, the IRBM will take these disclosures as foreign business income under 1 business source (even though the business identification column does not match).

    IRBM’s response on 9 September 2022: Taxpayers can use the same business code for each country concerned on different rows to indicate companies doing the same business in those countries.

    The proposal from CTIM will be considered when designing e-C for the subsequent assessment year.

    CTIM additional feedback and comments on 11 August 2022:

    Example: ABC Sdn Bhd has two business sources:

    1. providing engineering services and
    2. trading machines.

    ABC Sdn Bhd has branches in Singapore and Hong Kong that provide the same engineering services.

    In YA 2022, the following information is available for the Form e-C disclosure:

    Based on the example given above, can IRBM guide how the “Summary of statutory income …. In Malaysia” and the “Summary of Statutory Income from sources …. received in Malaysia from outside Malaysia” be completed?

    IRBM’s response on 9 September 2022:

    Based on the limited information above, the following are general guidelines for reporting in e-C 2022:

    1. The statutory income of business 1 in Malaysia is reported in column A1 and appendix A1 respectively.
    2. The statutory income of business 1 in Singapore and Hong Kong is reported either in column A2 and appendix A2 or column A 20 and appendix A20 depending on when the income is remitted. This reporting is subject to the business income in Singapore and Hong Kong having been taxed in those countries.
    3. Interest income from Singapore and Hong Kong must be reported in either column appendix A7 and appendix A7 or columns A 20 and appendix A20, depending on when the income is remitted.

    The ultimate tax reporting and calculation will be determined by the relevant circumstances in connection with:

    • the management of company activities,
    • the date of remittance of income sourced outside of Malaysia, and
    • the income tax status in the place of origin.

    1.2 Capital Allowance disclosure

    CTIM additional feedback and comments on 11 August 2022:

    Using the same example above –

    • How does a taxpayer complete Item C1a (Attachment) of Form e-C for YA 2022?
    • If the remaining portion of the FSI is received in Malaysia in YA 2023, how does a taxpayer complete Item C1a (Attachment) in Form e-C for YA 2023?
    • Only a portion of the statutory FSI is received in Malaysia in YA 2022. In this case, how do we disclose the amount of the CA utilised (absorbed) under Item C1a (Attachment) of Form e-C for YA 2022?

    IRBM’s response on 9 September 2022:

    The disclosure of information regarding capital allowances in schedule 3 of appendix C1a for form e-C2022 is only required if the business income was derived from Malaysia (referring to column and Appendix A1).

    Issued No 2: Item A20 – Income from sources outside Malaysia received in Malaysia for the period from 01.01.2022 to 30.06.2022 [If 7 = MY]

    CTIM additional feedback and comments on 11 August 2022:

    Referring to IRBM’s response on 2 August 2022 (as follows), it appears that a direct translation of the sentence means “the FSI received in Malaysia shall refer to the gross amount“.

    Kindly confirm that the actual FSI remitted shall be taken as the gross income instead, i.e., there is no requirement to re-compute the gross income of which the FSI is remitted into Malaysia.

    IRBM’s response on 9 September 2022:

    There is no need to re-compute the remitted income because it is gross income based on the provisions of Section 6, Part XX of the ITA 1967.

    Issue No 3: Part E – Summary of losses for business and partnership that are subject to restriction under Section 44(5F)

    Previously, this section was used to report normal business and pioneer losses with the heading of the appendix: Summary of Losses (Including Pioneer Losses after tax relief period).

    It is now renamed to cover losses subject to restriction under Section 44(5F).

    However, the Guidebook 2022 still stipulates that this section is “Including Pioneer Losses After Tax Relief Period” (see screenshot below):

    CTIM additional feedback and comments on 11 August 2022:

    As highlighted before, the query concerns the disclosure of the pioneer loss that is subject to the Promotion of Investment Act 1986 (“PIA”).

    The tax treatment of the unabsorbed pioneer loss after the expiry of the pioneer status period is governed under Section 25(5) of the PIA (not Section 44(5F) of the ITA).

    As such, kindly confirm that taxpayers are not required to disclose the unabsorbed pioneer loss that is governed under the PIA in Part E Attachment of Form e-C YA 2022.

    This is because Part E Attachment is only for disclosure of business loss and any pioneer loss that is governed under the ITA.

    As mentioned before, the taxpayers can still continue to maintain the movement of the pioneer losses after the tax relief period (that is governed under the PIA) separately using the HK-F2 (not part of the Form e-C YA 2022 to be submitted to the HASIL) for tax audit purposes.

    IRBM’s response on 9 September 2022:

    This column is intended to report loss positions subject to restrictions under section 44(5F) of the ITA 1967 and includes losses post-pioneer status period.

    IRBM will amend the label of this attachment so that it is more applicable to all circumstances when they develop the future return form.

    Issue No 4: Declaration Section

    Option 2 in the declaration section of the YA2021 Form C was worded as “This return form is prepared based on unaudited accounts.‘

    If a company cannot get its audited financial statements signed by the filing due date but still wishes to submit its tax return, it would select “Option 2′.

    Option 2 also applies to a Permanent Establishment (‘PE’) that is not registered with the Companies Commission of Malaysia (“SSM”) and would not have audited financial statements for tax purposes.

    However, the scenario would no longer fit into any of the above options in the YA 2022 Form C.

    CTIM understand that under the law, unless an audit exemption is granted, a company must submit its tax return based on signed audited financial statements. However, it is not uncommon that the audited accounts could not be ready by the filing due date due to various reasons.

    CTIM’s initial feedback and comments:

    In these circumstances, we would like to seek clarification, particularly:

    Is the company permitted to submit its tax return for YA 2022 based on draft audited financial statements without an audit exemption?

    IRBM’s response on 2 August 2022:

    Form C needs to be drawn up based on the financial statements prepared according to the act of its establishment as provided under section 77A of the ITA 1967.

    For companies incorporated under the Companies Act 2016, form C needs to be submitted based on the audited financial statements signed by the approved company auditor unless the company gets an exemption under the Companies Act 2016 from submitting audited accounts.

    Therefore, the submission of Form C must be based on option 1.

    If the form C submission is not based on audited financial statements, the form C submission will be rejected.

    CTIM additional feedback and comments on 11 August 2022:

    The above response does not address the issue of a PE which is not registered with SSM.

    Kindly clarify

    IRBM’s response on 9 September 2022:

    Sections 561 and 562 of the Companies Act 2016 apply to foreign companies that conduct business in Malaysia.

    The company must submit a tax return form per section 77A(4) of the Income Tax Act 1967, and it must be based on financial statements that have been compiled in line with the act of its establishment.

    Because of this, PEs in Malaysia are required to submit Form C based on audited financial statements under the rules of the PE establishment statute in Malaysia or the act governing the parent company of the PE.

    Submission of tax return forms based on management accounts is invalid and will be subject to penalty under section 112 of the ITA 1967.

    With that, the choice in the Declaration Section of form C has remained.

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    16
  • IRBM’s Response to CTIM on e-C 2022 (2)

    IRBM’s Response to CTIM on e-C 2022 (2)

    We would like to inform you that the Inland Revenue Board of Malaysia (IRBM) has disseminated a revised version of the Company Return Form (Form C) for the Year of Assessment 2022.

    To download a PDF copy of the return – https://t.me/YourAuditor/3259

    Chartered Tax Institute of Malaysia’s Previous Feedback

    Regarding Form e-C 2022, the Chartered Tax Institute of Malaysia (CTIM) has offered their input and comments to the Inland Revenue Board of Malaysia (IRBM).

    The responses from IRBM were shared by us on August 25, 2022 (https://www.ccs-co.com/post/irbm-s-response-to-ctim-on-e-c-2022)

    Chartered Tax Institute of Malaysia’s Additional Feedback

    Following the responses provided by IRBM, CTIM has forwarded Additional Feedback and Comments on Form e-C 2022 to IRBM. Some of the areas:-

    1. Statutory Income, Total Income and Chargeable Income [Part A]
    2. Summary of Statutory Income from Sources of Business(es) and Partnership(s) in Malaysia [Attachment A1]
    3. Summary of Statutory Income from Sources of Business(es) and Partnership(s) Outside Malaysia Received in Malaysia Effective From 1 July 2022 [Attachment A2]
    4. Other Statutory Income from Other Sources in Malaysia [Attachment A6]
    5. Other Statutory Income from Sources Outside Malaysia Received in Malaysia Effective from 1 July 2022 [Attachment A7]
    6. Summary of Investment Allowance for Service Sector Under Schedule 7B [Attachment C4]

    The responses were provided by IRBM on September 9, 2022.

    Issue No 1: Statutory Income, Total Income and Chargeable Income [Part A]

    Form e-C 2022:

    There is a reference to the columns A1, A2, A6, and A7.

    Matter 1

    In Form e-C 2022, Aggregate Statutory Income from sources of businesses/partnerships in Malaysia and Aggregate Statutory Income from sources of businesses/partnerships outside Malaysia received in Malaysia effective from 01.07.2022 are to be disclosed separately:

    • A1; and
    • A2

    But, Statutory income from businesses and partnerships is taxed as a source of income under Section 4(a) of the ITA. This is true no matter country of origin from (what country the income comes).

    Matter 2

    In Form e-C 2022, Aggregate Statutory Income from sources in Malaysia and Aggregate Statutory Income from sources outside Malaysia received in Malaysia effective from 01.07.2022 are to be disclosed separately:

    • A6; and
    • A7

    But, These statutory incomes are taxed as separate sources of income, regardless of country of origin.

    Practical Issue

    • This distinction between Malaysian and foreign origin increases the cost of compliance since additional effort will be necessary, for example, to apportion the amounts for each source of income.
    • As a result, the cost of compliance will increase.

    Feedback / Proposal of CTIM

    • To remain as per YA2021 as a single item labelled Aggregate statutory income from other sources

    Response of IRBM on September 9, 2022

    The separation between income from Malaysia and income from outside Malaysia received in Malaysia must be done in the tax calculation for the purpose of:

    1. Ensures the correct imposition of tax rates and avoids source income outside Malaysia received in Malaysia from being taken into account in determining tax according to the prosperous tax rate (33%).
    2. Determining the eligibility of tax credit claims under sections 132 and 133, as this depends on whether or not that country has a DTA with Malaysia.

    Issue No 2: Summary of Statutory Income from Sources of Business(es) and Partnership(s) in Malaysia [Attachment A1]

    Attachment A1 of Form e-C 2022:

    Attachment A1 in Form e-C 2022 requires a summary of Statutory Income from Sources of Business(es) and Partnership(s) in Malaysia only.

    Practical Issue

    • This distinction between Malaysian and foreign origin increases the cost of compliance since additional effort will be necessary, for example, to apportion the amounts for each source of income.
    • As a result, the cost of compliance will increase.

    Feedback / Proposal of CTIM

    • To remain as per YA2021, i.e., Attachment A1 for both sources in Malaysia and Outside Malaysia Received in Malaysia, effective from 1 July 2022.

    Response of IRBM on September 9, 2022

    Refer to IRBM’s response for Issue No 1.

    Issue No 3: Summary of Statutory Income from Sources of Business(es) and Partnership(s) Outside Malaysia Received in Malaysia Effective From 1 July 2022 [Attachment A2]

    Attachment A2 in Form e-C 2022 requires a summary of Statutory Income from Sources of Business(es) and Partnership(s) outside Malaysia received in Malaysia effective from 1 July 2022.

    Practical Issue

    • This distinction between Malaysian and foreign origin increases the cost of compliance since additional effort will be necessary, for example, to apportion the amounts for each source of income.
    • As a result, the cost of compliance will increase.
    • In addition, the Attachment only allows a maximum of 5 rows in any individual component.
    • Where there are several countries of origin for the same business or partnership source, taxpayers would not be able to give the relevant information.

    Feedback / Proposal of CTIM

    • To remove this Attachment, apply Attachment A1 for both sources in Malaysia and Outside Malaysia Received in Malaysia, effective from 1 July 2022.

    Response of IRBM on September 9, 2022

    Refer to IRBM’s response for Issue No 1.

    Furthermore, if there is insufficient space, the 5th and subsequent foreign source of business income should be combined and reported in the 5th line of each category.

    The Taxpayer can place one of the countries in the “Country” column. Keep complete records of each business source of income outside Malaysia for audit purposes.

    Issue No 4: Other Statutory Income from Other Sources in Malaysia [Attachment A6]

    Attachment A6 in Form e-C 2022 requires a summary of Other Statutory Income from Other Sources in Malaysia only.

    Practical Issue

    • This distinction between Malaysian and foreign origin increases the cost of compliance since additional effort will be necessary, for example, to apportion the amounts for each source of income.
    • As a result, the cost of compliance will increase.

    Feedback / Proposal of CTIM

    • To remain as per YA2021, i.e., Attachment A6 for both sources in Malaysia and Outside Malaysia Received in Malaysia, effective from 1 July 2022.

    Response of IRBM on September 9, 2022

    Refer to IRBM’s response for Issue No 1.

    Issue No 5: Other Statutory Income from Sources Outside Malaysia Received in Malaysia Effective from 1 July 2022 [Attachment A7]

    Attachment A7 in Form e-C 2022 requires a summary of Other Statutory Income from Other Sources outside Malaysia received in Malaysia effective from 1 July 2022.

    Practical Issue

    • This distinction between Malaysian and foreign origin increases the cost of compliance since additional effort will be necessary, for example, to apportion the amounts for each source of income.
    • As a result, the cost of compliance will increase.

    Feedback / Proposal of CTIM

    • To remain as per YA2021, i.e., Attachment A6 for both sources in Malaysia and Outside Malaysia Received in Malaysia, effective from 1 July 2022.

    Response of IRBM on September 9, 2022

    Refer to IRBM’s response for Issue No 1.

    Issue No 6: Summary of Investment Allowance for Service Sector Under Schedule 7B [Attachment C4]

    On Items h and n – Allowance Withdrawn

    Issues

    Schedule 7B of the ITA does not have provisions for the withdrawal of allowances.

    Feedback / Proposal of CTIM

    • To remove items “h” and “n” from the Attachment

    Response of IRBM on September 9, 2022

    The Income Tax Act of 1967, Schedule 3, Paragraph 2 provides the Minister with authority to approve written applications for service sector investment allowances and to set such terms and conditions as it sees proper.

    As a consequence, the company is not qualified to make a claim for the sector investment allowance service if any of the conditions are violated.

    Therefore, maintaining Columns “h” and “n” is important because it is necessary to fill in these columns if a company that has claimed service sector investment allowances in previous years of assessment is found to be in violation of the conditions established by the Minister in the current year, which renders the company ineligible to claim the sector investment allowance (This occurs when the Minister discovers that the company has violated the conditions set forth by the Minister in the current year.)

    In addition, columns “h” and “n” also need to be maintained in parallel with the existence of columns “c”.

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    20
  • IRBM’s Response to CTIM on Profiling Issues

    IRBM’s Response to CTIM on Profiling Issues

    According to what the CTIM has been told, the Intelligence and Profiling Department of the Inland Revenue Board of Malaysia (IRBM) has been making requests for information involving tax practitioners and their clients (such as the names, identity card numbers, tax reference numbers, contact numbers, etc.) to gather data from tax practitioners and other industries in general.

    To explore the concerns that have arisen as a result of those mentioned above, CTIM collaborated with IRBM to host a virtual meeting on June 21, 2021, as well as a discussion forum on March 9, 2022.

    IRBM reaffirmed that the primary goal of IRBM, which is to gather this information, is to address the issue of omission, tax leakage, and economic issues that are harmful to the government and bring a significant influence on the growth and well-being of the nation.

    The Institute has since obtained clarification from IRBM regarding the following issues about Profiling Issues:

    1. Moving ahead, the IRBM‘s request for information and details will take on a more “targeted” approach in the data collection operation. IRBM is currently in the process of modifying the format of the letter.
    2. The taxpayers and tax agents may not necessarily have to provide IRBM with all the information and details the company has sought from them as part of its information-gathering activity. In contrast to a Tax Audit or Tax Investigation, it is understood by IRBM that, for the Intelligence and Profiling Department’s information gathering exercise, only information and details that are easily accessible in the possessions of taxpayers or tax agents are expected to be submitted to IRBM.
    3. IRBM has confirmed that submitting only easily accessible information and details, such as those specified in item 2 above, would not be regarded as providing incomplete information and will not be subject to punishment in this regard.
    Our website's articles, templates, and material are solely for reference. Although we make every effort to keep the information up to date and accurate, we make no representations or warranties of any kind, either express or implied, regarding the website or the information, articles, templates, or related graphics that are contained on the website in terms of its completeness, accuracy, reliability, suitability, or availability. Any reliance on such information is therefore strictly at your own risk.

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  • IRBM’s Response to CTIM’s Development Cost for Customised Computer Software

    IRBM’s Response to CTIM’s Development Cost for Customised Computer Software

    Income Tax (Capital Allowance) (Development Cost for Customised Computer Software) Rules 2019

    On 3 October 2019, the Minister, in the exercise of the powers conferred by paragraphs 154(1)(b), 33(1)(d) and paragraphs 10 and 15 of Schedule 3 to the Income Tax Act 1967 [Act 53], gazetted the Income Tax (Capital Allowance) (Development Cost for Customised Computer Software) Rules 2019 [P.U (A) 274/2019].

    112.5-P.U-A-274_2019-Income-Tax-Capital-Allowance-Development-Cost-For-Customised-Computer-Software-Rules-2019Download

    On April 9, 2020, the Malaysian Inland Revenue Board (also known as the “IRBM”/”LHDNM”) issued Practice Note No. 2/2020 (“Practice Note”) with a publication date of March 16, 2020.

    The purpose of this Practice Note is to provide some direction on how these Rules should be put into practice.

    112.1-Practice-Note-No.-2_2020-Claiming-CA-under-the-Income-Tax-Rules-2019-EYDownload

    According to the Practice Note, the term “development cost” for customised computer software refers to:

    • the expenses incurred in:
      • producing new software; or
      • improving the existing software
    • for it to be used to conduct business.

    Based on the Rules effective from YA 2018:

    • a Malaysian resident who has incurred qualifying development costs for customised computer software
    • will be eligible for CA claims at 20% Initial Allowance (IA) and 20% Annual Allowance (AA).

    Qualifying Development Costs

    • Consultation Fee
      • Consultation fee incurred on the development of the software specifically to develop a new software system, modification or modernisation of the existing software, excluding consultation fees related to initial procedure or planning stage such as feasibility study or preliminary study.
    • Payment for rights of software ownership
      • Payment for the right to use the software exclusively.
    • The incidental fee relating to the development of customised computer software
      • Payment incurred, which enabled the use of the software in a business and capitalised such as change of requirement the software.

    However, the Practice Note does not include a comprehensive list of examples of incidental expenses that may be seen as related to customised computer software production.

    Withholding Tax Implications

    Withholding tax (often known as “WHT”) may be applied to payments made to non-residents for the costs of developing customised computer software under either Section 109 or Section 109B of the Income Tax Act (ITA), depending on the specific circumstances of each transaction.

    If the appropriate WHT is not withheld and remitted to the MIRB within one month after paying or crediting the non-resident:

    • A penalty equal to 10% of the unpaid WHT will be assessed.
    • In addition, a capital allowance would not be granted for any qualifying capital expenditures that were incurred but for which the WHT, if applicable, had not been paid or remitted to the MIRB. In this case, the expenditure would not be eligible for a capital allowance.

    Capital allowance can be claimed in the basis period for a YA that the customised computer software can be used in a business.

    Effective Date and Timing of Claim

    The Practice Note provides:

    • The Rules apply to development costs for customised computer software incurred in the basis period from YA 2018.
    • The cost is considered/deemed to have been incurred when the customised software can be used for business purposes.

    To better demonstrate the position of the IRBM on the conditions above, the following examples have been provided in Practice Note 2/2020.

    * Y/A 2017’s cost of development does not qualify.

    Non Application

    The claim for capital allowance for the development cost of customised software provided under these Rules, however, will not be applicable if the person has claimed in respect of the customised software:

    • Any incentive under the Promotion of Investment Act 1986
    • Deduction under s 33 of the Income Tax Act 1967 (ITA)
    • Deduction for research and development expenditure under s 34A of ITA
    • Reinvestment allowance
    • Investment allowance for the services sector
    • Accelerated capital allowance under any Rules, or
    • Any tax exemption which is equivalent to any part or the whole amount of the development cost incurred.

    Response from the IRBM on 19 May 2022

    On 19 May 2022, CTIM sought confirmation on whether the following constitute qualifying expenditure as development cost for customised computer software (CCS) under the P.U. (A) 274/2019:

    1. Cloud service charges incurred during the development phase;
    2. Staff costs were incurred explicitly during the development of the CCS;
    3. Data migration from legacy IT system to the new CCS as part of the implementation of the CCS before “go live”;
    4. Development of mobile application.

    The following is a response from the IRBM to the points that CTIM made on 16 September 2021:

    Cloud Service charges incurred during the Development Phase

    Suppose cloud service payments are part of the expenses incurred while the CCS is being developed to enable the CCS to be used in business. In that case, the payment of the cloud service charges may be included as development costs for the CCS under the P.U. (A) 274/2019 on the assumption that the expenses are incurred during the CCS development period before the CCS can be fully utilised in business and capitalised.

    After the CCS development period has ended and the CCS can be used in business, maintenance-related expenses can be claimed under S.33 of the ITA.

    Staff Costs were incurred explicitly during the Development of the CCS

    Staff cost may be included as development cost for the CCS under P.U.(A) 274/2019, subject to the following conditions: –

    1. The staff cost is not included in the salary payment to existing company employees. (Note: The staff is explicitly appointed to develop the CCS.)
    2. The job description of the staff is clearly and manifestly for CCS development.

    Data Migration from legacy IT Systems to the new CCS as part of the implementation of the CCS before “go live.”

    Based on the fact that payment of data migration from legacy IT systems needs to be incurred while the CCS is developed to enable it to be used in business, LHDNM is of the view that it can be included as a development cost for the CCS under the P.U.(A) 274/2019.

    It is eligible to be claimed under the Incidental fee provided that the expenses are incurred during the CCS development period to enable the software to be used in business and not for routine data migration activities.

    Expenditure for data migration from a legacy system that is usual/customary or routine and incurred in generating business income can be claimed under S.33 of the ITA.

    Development of the Mobile Application

    LHDNM agrees with CTIM’s view that this mobile application is part of the CCS developed.

    Consequently, mobile application expenditure can be included as a development cost for the CCS under P.U.(A) 274/2019.

    Response from the IRBM on 4 June 2020

    Issue 1:

    • CTIM urged IRBM to confirm that “customised computer software” refers to software other than commercial off-the-shelf software and includes tailor-made software, software developed from scratch that caters to specific requirements of the business. software customised from a base software module; and
    • also to confirm that any subsequent enhancements or upgrades made to the customised computer software would qualify for capital allowance under the Rules.

    Feedback from IRBM:

    Based on P.U.(A) 274/2019, the development cost for software specifically refers to expenses incurred in developing new software or enhancing existing software for use in business purposes.

    Please refer to Practice Note No. 2/2020 (“Practice Note”).

    Issue 2:

    ‘Under rule 2, “development cost for customised computer software” means “consultation fee, payment for rights of software ownership and incidental fee relating to the development of customised computer software’.

    CTIM urged IRBM to clarify the following:-

    a. If “payment for rights of software ownership‘ is intended to cover all types of software licensing fees.

    Feedback from IRBM:

    Payment refers only to the right to exclusively use the software, where the payment enables the software to be used in business for the first time.

    Periodic software licensing fees are eligible for income tax deduction under subsection 33(1) of the Income Tax Act 1967.

    b. If “incidental fee relating to the development of customised computer software” would include testing and commissioning expenses, reimbursement/out-of-pocket expenses such as accommodation and travelling expenses.

    Feedback from IRBM:

    Please refer to Practice Note No. 2/2020 (“Practice Note”).

    c. Based on the Public Ruling (PR) No. 12/2014 on ‘Qualifying Plant and Machinery for Capital Allowances’, the payment for developing software, such as consulting fees, right to use the software such as licence fees, and other incidental charges do not qualify as plant and hence not eligible for capital allowance.

    CTIM suggested that:

    • this PR be amended accordingly following the gazette of P.U. (A) 274/2019; and
    • further clarification and examples should be provided in the PR to address the application of the Rules.

    Feedback from IRBM:

    This matter is duly noted.

    However, the LHDNM believes that Practice Note No. 2/2020 (“Practice Note”) has already clarified tax treatments related to this issue.

    Feedback from LHDN

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  • IRBM’s Response to CTIM’s Transfer Pricing Issues

    IRBM’s Response to CTIM’s Transfer Pricing Issues

    CTIM’s transfer pricing issues have received a response from the Inland Revenue Board of Malaysia (IRBM), which was provided on February 15, 2022.

    The following is a response from the IRBM to the points that CTIM made:

    1. On the threshold for preparation of transfer pricing (“TP”) documentation

    IRBM acknowledges the need to revise the thresholds to reflect the requirement of preparing the TP Documentation with the risk of tax base erosion and exclude a particular group of SMEs that only have domestically controlled transactions.

    Chapter I of the Malaysian Transfer Pricing Guidelines 2012 (MTPGL 2012) is now undergoing revision by IRBM to consider these modifications.

    2. Intercompany Financing

    IRBM’s Response: When determining an interest rate at arm’s length, taxpayers may choose to utilise any pre-approved reference rates. However, there is a discussion of implementing a more simple method shortly.

    3. In conjunction with the Safe Harbour

    IRBM’s Response: It is being thought about whether to give specific guidance on a group of intragroup services called “low value-adding intragroup services.”

    Taxpayers can choose this easy way to figure out arm’s-length charges for low-value-adding intra-group services if certain conditions are met.

    4. TP considerations for taxpayers who have been adversely affected by the COVID-19 pandemic

    Any particular issues or concerns related to the pandemic’s impact on limited-risk operating entities must be carefully documented and justified.

    The IRBM recognises that low-risk operating entities could sustain financial losses but insists that such a claim must be backed up by sufficient documentation and an adequate explanation.

    For instance, the decision of any limited risk entities to accept certain losses ought to be reviewed in light of the impact that the pandemic will have on their operations by evaluating their functions, assets, and risks.

    The IRBM has updated the Frequently Asked Questions on APA treatment due to the COVID-19 pandemic in October 2020.

    Further clarification on specific issues on APA can be forwarded to IRBM ([email protected]).

    5. Cooperative compliance program

    The IRBM is currently in the process of preparing a framework that will be known as the Tax Corporate Governance Framework (TCGF).

    This framework will be the basis upon which the IRBM and taxpayers will build and maintain a more comprehensive working relationship to guarantee that the tax compliance process is fair and effective.

    This framework also makes it possible for businesses, the IRBM, and the community to understand one another better.

    In addition, the aspects of accountability and transparency under governance arrangements to foster a better understanding of tax treatment are also crucial to ensure that proper and effective tax compliance can be achieved.

    6. Guidance on Financial Assistance Transaction

    The IRBM is in the process of incorporating some guidance provided under the OECD’s Transfer Pricing Guidance on Financial Transactions.

    Our website's articles, templates, and material are solely for reference. Although we make every effort to keep the information up to date and accurate, we make no representations or warranties of any kind, either express or implied, regarding the website or the information, articles, templates, or related graphics that are contained on the website in terms of its completeness, accuracy, reliability, suitability, or availability. Any reliance on such information is therefore strictly at your own risk.

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